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Mediate.com

Mediation Killed?!?

by Jeff Thompson
March 2010

From Jeff Thompson's Enjoy Mediation Blog

Jeff Thompson

Oh my goodness is Mediation being killed!

R.D. Benjamin’s latest article at
www.Mediate.com, regarding mediation being 'killed' hooked me into reading it, partially perhaps due to my law enforcement background plus for my love of mediation and not wanting it to be ‘killed’!

While reading Mr. Benjamin’s article (read it here), I had many questions and comments which I ‘scribbled’ down on a Word Document. I realized I had many comments because the topic of specialization, professionalization and certification are arguably linked as well as they are what I think is the most pressing issue(s) our field is facing.
I am deciding to publish my comments hoping to not only engage Mr. Benjamin in dialogue but as you will see from my open-ended questions, also the greater ADR/Mediation community.

I actually think this topic would be great for a future web panel discussion similar to a previous Project BlueJay discussion on Web 2.0 at
www.EnjoyMediation.com and/or the recently new podcasting series at www.CafeMediate.com.

What does everyone think?

As a last comment before pasting my notes below, three points I would like to stress.

1) These comments are not meant to be an attack of any kind but rather an attempted reflective practitioner approach of trying to learn as well as question. I always welcome comments to my own posts and articles and look forward to any potential comments to what I write below. Laughingly, I know the limitations to my own articles, as I recently tried to tie in fried pickles to mediation! (see here:
http://www.mediate.com/articles/thompsonJ3.cfm)

2) I hope this adds further comments and dialogue to this important topic.
3) Below are posted notes, and if there are typos more than my usual edited posts which have their fair share of typos, I hope you understand it- Enjoy!

(Mr. Benjamin’s comments are italicized in red, my replies are in black.)

For example, looking at an issue, be it business or personal, strictly within the legal dispute management paradigm, without regard for the emotional considerations or business implications, is ineffective and quite possibly negligent.
I agree, as is the case with‘generalize’ mediation too. Are you though saying this is what happens in these cases??

As mediators increasingly specialize in particular dispute contexts or limit themselves to particular practice approaches they close off the systemic focus that is the hallmark of mediation.
How so??

That narrow view is not wrong or bad, per se; in some circumstances it may be necessary. However, to have that approach become a matter of habit---or a rut---conditioned by the context in which the dispute is presented often precludes the use of other more creative strategies and techniques.
Is there data or from your experience? Is it because of the training? What is the cause?

For their part, mediators appear to have become so pre-occupied with seeking the legitimacy brought about by having the field fit the image of the traditional professions that the original purposes of mediation have been lost.
How so? How do you believe this is the case that time is being spent on ‘professionalizing’ instead of what??
Professionalization adds legitimacy including ethics and standards, standards which are adaptable- think at least.

Overwrought professional standards and ethical requirements restrict mediator range of motion
has this essential personal connection between a mediator and conflicted parties been created or even fostered by written rules. In fact, sometimes written rules serve more to confuse the process than aid it.
Guidelines and rules do not hinder the ‘natural process’ but rather show the boundaries a mediator works within. We think outside the box but we all must work within certain parameters.

The qualifications set by the authorities in control are not necessarily people familiar with mediation practice
Spot on! In the eastern district NY Supreme Court, you have to be an attorney to be on the mediator panel and in Nevada foreclosure mediation program, one of the qualification paths is simply being an attorney! Doesn’t that call for guidelines?? Look, if people are setting qualifications, should ‘we’ try to get them right, or at least better?

The systemic view, the hallmark of mediation practice, is reverting back to an emphasis on subject matter expertise
Isn’t it up to the parties?

The Association of Conflict Resolution and many state and regional associations of mediators and conflict management practitioners, insist on separate practice sections dedicated to specialized dispute contexts.
Yes, but after basic training benchmarks passed. The sub-groups do not decide who gets to mediate cases in each particular area/industry.

Often there are special fees for belonging to individual sections that can be costly and discourages participation in multiple sections
How expensive are these fees? There should be exemptions for volunteer mediators perhaps.

“Legal mediation” is distinguished from other kinds of mediation,
Where? Negatively?
suggesting that those outside law could not understand the nature of conflicts that arise in the legal context and that conflicts that occur in he shadow of the court actions are predominantly legal.
Who suggests this? Let’s ask them about their approach. I do know some court districts (already mentioned above does this). How do you think this can be changed?

Some programs presume to endorse a particular style of mediation practice, such as “transformative mediation,” or “interest based mediation” to the exclusion of other approaches.
Can a “transformative” mediator really also be an “evaluative” mediator the next day?

The clear suggestion is that there is one approach which is suitable for all parties in all circumstances.
I see it more as I have a style, which to a degree is flexible, but my style none the less. I am adaptive to the parties needs, and can utilize each of the styles. Also, certain centers or organizations beleive in a certain approach, if as a mediator or potential client, you have the choice of choosing them or not. It all about options!

Different practice approaches, perspectives and styles contribute to a cauldron of creative thinking and should not be discouraged
What about the mediator that doesn’t believe in the “transformative" approach, should he/she have to do it? Also, some places teach certain styles that also promotes co-mediation. What would happen if two mediators co-mediating, where one was transformative while the other was facilitative?

But formalizing those differences into strict specialties, especially by the mediator is questionable at best.
Understandable as well, I think. How do you suggest a mediator get these well rounded skills? Is it by creating standards that you are against? Otherwise a free for all would occur, right? Also, mediation styles are a different topic from specialization areas- not interchangeable.

Further, each dispute context does not require a separate mediation model or structure and the imposition of such structuring is often little more than a veiled attempt to limit and constrain the mediation process.
Well, it is a process, and it is structured – flexible but still structured. It’s up to the parties to decide if the mediator’s style is what they are looking for during intake. If it is court connected, odds are the mediator will be facilitative to some degree. You don’t get to pick the judges style so should you get to pick the style of the mediator?

Mediation practice in special education, termination of parental rights, and workplace, or ADA (Americans With Disabilities Act) matters, often press the mediator into the uncomfortable and professionally compromised role of being a de facto investigator or law enforcement agent.
Very interesting, I would like to hear from mediators from these areas to gauge their thoughts to see if they agree with this assessment.

Specializing mediators by style or substantive context essentially reduces them to being agents of the hiring authority with the larger context being ruled out of bounds.
How so? Where is the correlation between style and ‘working for the man’?

In a workplace dispute where there has been an allegation of race or sex discrimination, for example, many mediators take a narrow view and limit their role strictly to the presenting issue as they might in a court case. In doing so, they can easily miss the larger more relevant issues of how rules are set and enforced.
(Bold added by me) Where is the data on this? I agree with the last sentence if that is the case, however, I am interested in seeing the data that supports this comment.

This conjures a connection between their role as a mediator and the rationalist notion of mediation as a reasoned problem solving process pursued through civil dialogue where the mediator is an objective, “above the fray,” dispassionate problem solver who is disinterested in any particular outcome.
Dispassionate and empathy can be used together I think. I would not say disinterested, but rather not attached to one outcome. I think it is fine to say something along the lines during the mediator's introduction something like this, “I am here to help you both discuss the issue or issues that brought you here and also look for possible solutions that meet each of your needs. If you find a solution suitable for both of you, we can write up an agreement if you want or if no agreement is reached, that is ok too, only each of you know what is best for each of you given the current situation…”

…only to become encrusted with so many rules that it has largely lost its’ cost effectiveness and efficacy?
How many rules are too many? Which ones do you think can be removed?

For many, mediation has already garnered a negative reputation as being ineffectual and an additional cost to be endured before a matter can be tried in a ‘real’ court.
I am interested in your perspective on why you think that is the case, and equally interested in how you think this can be worked on?

The value of studying and practicing the skill in a disciplined manner is not in question and remains more important than ever. Unfortunately, however, the competency, effectiveness and acceptance of the craft of mediation is being retarded and inhibited by the pursuit of formal professional status.
This is an incredibly powerful statement; I wish this was explained more in-depth as to how professionalization is not part of the first sentence. People offer mediation trainings and after a few hours give out certificates and tell people they are mediators (this is based on numerous stories told to me from all over the country). How do we as a field ensure those mediating are getting proper training?

As the practice continues to be specialized, professionalized and institutionalized, does it become further removed from its’ original purpose, intention and value?
Great question and I wonder if professionalization and specialization have to be combined here. Can we not have professionalization without ingrained specialization? At the same time, I wonder, can a mediator who specializes in real estate effectively mediate a case regarding special education? Looking at this comment, and your quoted one above- is studying and practicing in a discipline manner not professionalization?

Is mediation, as it becomes more formalized, to follow the path of arbitration which began as an usefully informal mode of conflict management, only to become encrusted with so many rules that it has largely lost its’ cost effectiveness and efficacy?
Again, great question but is it the many rules which caused this? How do you suggest it be prevented then for mediation?

Biography


Jeff Thompson, Ph.D., is a professor at Lipscomb University, researcher, mediator, and trainer. He is also involved in crisis and hostage negotiation as well as a law enforcement detective. His research includes law enforcement crisis and hostage negotiation in terrorist incidents. He received his doctorate from Griffith University Law School having researched the impact nonverbal communication has in conflict situations with respect to developing rapport, building trust, and displaying professionalism.

Dr. Thompson has presented and trained on the topic of conflict, mediation, (crisis and hostage) negotiation, communication and nonverbal communication internationally for a variety of audiences including police personnel, government officials, judges, attorneys, physicians, sales people, business professionals, and both graduate and undergraduate students. He has also been published in numerous professional and academic publications.

He is the co-chair of ACR's national Crisis Negotiation Section, and he is an ad-hoc reviewer for multiple academic journals. He received his MS in Negotiation and Dispute Resolution from the Werner Institute, Creighton University School of Law.

(All posts by Jeff Thompson represent his personal reflections and opinions and not that of any organization.)



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